Nebraska Dept. of Roads Emp. A. v. Department of Roads
| Decision Date | 08 August 1973 |
| Docket Number | No. CV72-L-183.,CV72-L-183. |
| Citation | 364 F. Supp. 251 |
| Parties | NEBRASKA DEPARTMENT OF ROADS EMPLOYEES ASSOCIATION, an unincorporated association, and Richard Kiernan, Plaintiffs, v. DEPARTMENT OF ROADS, STATE OF NEBRASKA, and Thomas D. Doyle, State Engineer and Director of the Department of Roads, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Douglas Marti, Lincoln, Neb., for plaintiffs.
James J. Duggan, Asst. Atty. Gen., for defendants.
Richard Kiernan seeks relief from the effects of his discharge from public employment in the Department of Roads of the State of Nebraska. The claim is that his discharge was for one or more reasons which the United States Constitution forbids the state to use. As explained in this memorandum, this court concludes that he is right in this claim and that he therefore is entitled to relief.
The action is founded upon the Civil Rights Act, 42 U.S.C. § 1983, and jurisdiction rests upon 28 U.S.C. § 1343.
Following his discharge, Kiernan filed suit in the Court of Industrial Relations of the State of Nebraska and that court, after a full evidentiary hearing, concluded that it had no jurisdiction because the dismissal was not "because of . . . Kiernan's membership in or affiliation with the . . . Nebraska Department of Roads Employees Association" and therefore that there was no industrial dispute. The court said that "the plaintiffs here have not convinced us as triers of the fact that the firing of Kiernan or the other activities of the defendant as shown by the evidence were motivated by anti-union sentiment." On appeal to the Supreme Court of Nebraska the dismissal of the Court of Industrial Relations of Nebraska was upheld, again on jurisdictional grounds, because of the lower court's finding that there was no antiunion animus shown to have prompted the firing.
Because the court of industrial relations had jurisdiction only to decide its own jurisdiction, I must give full faith and credit to its decision, as affirmed by the Supreme Court of Nebraska. As a finding of fact that the termination of Kiernan's employment was not the result of antiunion behavior was necessary to a determination of lack of jurisdiction in the court of industrial relations, that fact is finally determined. However, to avoid any undue concern or needless effort, I find from a review of the evidence as a matter of fact that the discharge was not for any reasons related to Kiernan's union membership or activity.
It follows that the plaintiff Nebraska Department of Roads Employees Association is not entitled to relief. It also follows that the claim of the plaintiff Kiernan that his discharge was in violation of his constitutionally protected right of association must fail.
The defendant Thomas D. Doyle, State Engineer and Director of the Department of Roads, was appointed to that position by the Honorable J. J. Exon, Governor of the State of Nebraska, at some date not specifically disclosed by the record, but impliedly a few months before August, 1971. On August 28, 1971, at a closed meeting of the Professional Engineers in Government Section of the Professional Engineers of Nebraska, at which no representatives of the press were invited or attended, a discussion was had of the proper role of the Professional Engineers in Government Section in future political appointments. Another Department of Roads employee asked what the Section intended to do about the State Engineer's situation. The chairman of the meeting, W. R. Meyer, Jr., said that he did not know whether the board of directors of the Section had taken any stand on it at the time of the appointment but that he felt the matter could better have been considered at the time of the appointment than at this late date. Kiernan then said that he agreed that it was now too late and further said in effect that Doyle was not particularly qualified for the position of State Engineer, not being a civil engineer, and that it was inappropriate for the Governor to have appointed him to that position. Kiernan made no further comment regarding Doyle.
Doyle learned that comments of some kind regarding his qualifications had been made at the meeting but did not know that Kiernan had made them. On September 1, 1971, Doyle called W. R. Meyer, Jr. to his office and asked whether Kiernan had questioned Doyle's qualifications. An affirmative reply was received. Doyle thereafter on the same day called Donald Swing, Kiernan's immediate superior, and asked him to come with Kiernan and Deputy State Engineer Roy Gardner to his office. As stated by the Supreme Court of Nebraska:
Doyle immediately informed Kiernan orally that Kiernan was suspended from his job without pay and confirmed the suspension by letter. By letter dated September 7, Doyle wrote Kiernan that, effective immediately, he was dismissed from employment. Reasons cited were "direct insubordination," "conduct unbecoming a State employee," and "for the good of the classified service," but testimony makes it clear that the basis of the discharge was the substance of the words said by Kiernan in Doyle's office, as recounted above.
Doyle thought that Kiernan's opinion of Doyle's qualifications would interfere with Kiernan's ability to perform his duties. Doyle neither knew of nor investigated Kiernan's work performance before the suspension or between the suspension and the discharge. No evidence suggests that Kiernan's ability to perform his work was affected in fact by his opinion of Doyle's qualifications or Kiernan's expression of that opinion. Work performance records of the Department of Roads showed Kiernan to be average or above in his day-to-day performance.
Although the full organizational structure of the Department of Roads' 2,600 employees is not revealed in the evidence, it is beyond doubt that Kiernan was several layers below Doyle in that structure and that they did not have frequent or regular contact. Indeed, Doyle knew Kiernan, as far as the record shows, only through and with respect to Kiernan's union activities, until the time of the September 1, 1971, meeting in Doyle's office.
These are the facts upon which the propriety of the discharge must be judged.
Generally, a government may deny an employee the benefits of employment for many reasons, perhaps in some instances for no reason. Nevertheless, there are some reasons it cannot properly use. It must not "deny a benefit . . . on a basis that infringes his constitutionally protected interests —especially, his interest in freedom of speech." Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). The reason is easy to see: The First and Fourteenth Amendments to the Constitution forbid a state's "abridging the freedom of speech," and if the state could discharge an employee for speaking, he would not be free to speak. The freedom, however, is not absolute and the task is to arrive at a balance between the interests of the employee, "as a citizen, in commenting on matters of public service and the interest of the State, as an employer, in promoting efficiency of the public services it performs through its employees."1
More specifically, the discharge of Kiernan must be tested by the decision of the Supreme Court of the United States in Pickering v. Board of Education of Township High School District 205, Will County, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In that case a teacher had been dismissed for sending a letter to a local newspaper in connection with a recently proposed tax increase. The letter was "critical of the way in which the Board and the district superintendent of schools had handled past proposals to raise new revenues for the schools."2 The letter also "charged the superintendent of schools with attempting to prevent teachers in the district from opposing or citicizing the proposed bond issue."3 Some of the statements in the letter were true, some false. The court held that writing of the letter could not be used properly as a basis for discharging the teacher. As to the statements in the letter which were true, but critical, the court said:
4
As to the false statements in the letter, the court held that:
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